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In patent litigation, the adequacy of proof of apportionment in reasonable royalty damage claims is often a challenging issue that is hotly contested by the parties. The Federal Circuit has recently focused on the use of...more
Originally published in The Journal Record | January 31, 2019. This month, the U.S. Supreme Court issued its opinion in Helsinn Healthcare v. Teva Pharmaceuticals, confirming that private sales of an invention may preclude...more
Fifty years ago, in Brulotte v. Thys Co., the U.S. Supreme Court held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” 379 U.S. 29, 32 (1964). On June...more
A bedrock principle of U.S. patent law is that the patent grant comprises a quid pro quo. In exchange for a limited term of exclusivity (presently, twenty years from the earliest filing date), the patented invention is placed...more
Patent holders and accused infringers will need to continue being creative in drafting license agreements after the Supreme Court’s recent decision in Kimble v. Marvel, No. 13-720, 2015 U.S. Dist. LEXIS 4067, at *6 (June 22,...more
The U.S. Supreme Court, in a 6 to 3 ruling citing stare decisis, upheld the half-century rule against royalty payments accruing after expiration of a patent. The Court’s decision in Kimble v. Marvel Entertainment, LLC is a...more
The U.S. Supreme Court’s recent decision in Kimble et al. v. Marvel Entertainment, LLC, rejuvenates a 50-year old rule addressing patent royalties, bringing it to the forefront of patent and licensing practice. On June 22,...more
Yesterday the Supreme Court heard oral argument in Kimble v. Marvel Enterprises, one of the most important cases on the Court’s docket this term for antitrust and patent law practitioners. As we previously discussed, in...more
Today, as we previewed here, the US Supreme Court analyzed the question of whether patent holders should be allowed to contract for royalty payments that continue to accrue after the expiration of the subject patent. While...more
Fifty years ago, the Supreme Court held in Brulotte v. Thys Co., 379 U.S. 29 (1964) that a license agreement requiring royalty payments for use of a patented invention after expiration of the patent term is unlawful per se. ...more
On Friday the Solicitor General filed an amicus brief in Kimble v. Marvel Enterprises. As we previously noted, in Kimble, the Supreme Court will consider whether to overturn Brulotte v. Thys Co., a 50-year-old precedent...more
Kimble v. Marvel Enterprises - The U.S. Court of Appeals for the Ninth Circuit, in affirming a district court decision that toy maker Marvel was not required to make payments after the expiration of a patent,...more
Fifty years ago, in Brulotte v. Thys Co., the U.S. Supreme Court held that the collection of royalties after a patent’s expiration constitutes per se patent misuse. Although criticized by scholars, antitrust agencies, and the...more
The U.S. Supreme Court Friday agreed to revisit a longstanding precedent that bars patent owners from collecting royalties after their patents have expired, even if those post-expiration payments represent compensation for...more
In This Issue: - Supreme Court Hears Six Patent Cases This Term - Is Implied License the New Fair Use? - Navigating the Murky Waters of the Domestic Industry Requirements in the International Trade...more
Standard For Obtaining Attorney’s Fees Too High - In OCTANE FITNESS, LLC v. ICON HEALTH & FITNESS, INC., Appeal No. 12-1184, the Supreme Court reversed and remanded the Federal Circuit’s affirmance of the district...more
The Supreme Court of the United States has made it clear that the traditional canons of litigation — including those involving jurisdiction and which party bears the burden of proof — hold true in patent cases, even those...more
A patentee bears the burden of proving infringement when a licensee seeks a declaratory judgment of non-infringement, the U.S. Supreme Court has held. The ruling reversed the Federal Circuit and clarified declaratory...more